Snowhite v. State, Use of Tennant

• Decision Date: 28 June 1966
• Docket Number: No. 308,308
• Citation: 221 A.2d 342,243 Md. 291,19 A.L.R.3d 1155
• Parties: , 19 A.L.R.3d 1155 Harold SNOWHITE, Individually and trading as Service Oil Co. v. STATE of Maryland, Use of Julia A. TENNANT, et al.
• Court: Maryland Court of Appeals

Page 291

243 Md. 291

221 A.2d 342, 19 A.L.R.3d 1155

Harold SNOWHITE, Individually and trading as Service Oil Co. v. STATE of Maryland, Use of Julia A. TENNANT, et al.

No. 308.

Court of Appeals of Maryland.

June 28, 1966.

Joseph H. Young and Donald E. Sharpe, Baltimore (Dewey B. Morris and Piper & Marbury, Baltimore, on the brief), for appellant.

Thomas J. S. Waxter, Jr., and Melvin J. Sykes, Baltimore (Paul Berman, Baltimore, on the brief), for appellees.

Before HAMMOND, HORNEY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

BARNES, Judge.

In this case the jury in the Superior Court of Baltimore City answered certain special issues on which a judgment for $90,000 was entered in favor of the plaintiffs below, Julia A. Tennant, surviving widow and Michelle Tennant, Surviving child of Walter W. Tennant, deceased, and for $4,000 in favor of Mrs. Tennant as administratrix of the estate of her deceased husband, against Harold Snowhite, individually and trading as Service Oil Company (Snowhite), one of the defendants below and the appellant in this Court.

The decedent was killed while driving south on the Ritchie Highway at a point something over 200 feet north of the intersection of Shelly Road with that highway. The accident and his death resulted from the negligent operation of a gasoline tank truck owned by Snowhite and operated by Clarence Henderson (Henderson) while intoxicated. Henderson, who was driving north on the highway, had entered the southbound lane, instead of continuing in the northbound lane, and struck the automobile properly operated by the decedent (but owned by his employer, The Goodyear Tire and Rubber Company) substantially head-on at approximately 5:15 p. m. on November 29, 1961. The trial court (Grady, J.) directed a verdict in favor of the plaintiffs below against Henderson and the trial court's action in this regard is not challenged in this Court. The appellants, however, contend that the trial court erred in (1) permitting prejudicial references to insurance, (2) permitting the witness Mitchell Claude to testify in that his testimony was not in rebuttal and he was not listed as a witness in the answers of the appellees to interrogatories, (3) in permitting the reading of portions of Henderson's deposition as substantive evidence against Snowhite on the issue of negligent entrustment, and (4) in failing to direct a verdict in favor of Snowhite because there was no legally sufficient evidence to support a finding by the jury that Snowhite had negligently entrusted the gasoline tank truck to Henderson.

In view of the action of the trial court in refusing Snowhite's motion for judgment notwithstanding the verdict and the contention of Snowhite that there was no legally sufficient evidence to support the finding of negligent entrustment, we must 'resolve all conflicts in the evidence in favor of the' appellees, as plaintiffs below, 'and assume the truth of all evidence and such inferences as may reasonably be deduced therefrom which tend to support the right of the (plaintiffs) to recover.' Hogan v. Q. T. Corporation, 230 Md. 69, 74, 185 A.2d 491, 494 (1962) and prior Maryland cases cited in the opinion in that case.

In addition to the facts already stated, the record indicates the following: For a number of years prior to the accident, Snowhite and Alexius Dyer (Dyer) were suppliers of gasoline, diesel oil and kerosene in the Baltimore area. Dyer had a contract to haul gasoline for the American Oil Company. When his trucks were occupied, he would arrange to have Snowhite's trucks handle the supplies. Dyer virtually retired in 1960. Before this, he had employed Henderson whom he had known for a number of years. After February 1960, Henderson bagan to work for Snowhite. Henderson's duties consisted primarily of driving either gasoline or kerosene trucks owned by Snowhite.

Henderson had known both Dyer and Snowhite for Between 23 and 25 years and had worked off and on for them as a driver. Since 1952 he worked regularly, first for Dyer and later for Snowhite. His job for Snowhite was to drive snowhite's trucks delivering gasoline, kerosene, fuel oil and bulk oil. Snowhite's kerosene truck was garaged at Kratz's Garage on Calverton Road. The gasoline trucks were stored at the yard of the American Oil Company in Curtis Bay. Although Snowhite had never expressly said that Henderson should 'keep the trucks', Henderson testified that if after making deliveries 'I wanted to go somewhere * * * well all I had to do was just jump in the truck and go * * * I've been practically on my own insofar as the trucks is concerned.' He stated that no complaint was made about using the trucks for his own purposes.

Henderson lived about two miles from Snowhite's Pearl Street office and approximately five miles from the American Oil Company yard at Curtis Bay. Snowhite knew that Henderson had no automobile of his own. He admitted that from time to time he had allowed Henderson to use any of Snowhite's available trucks and even Snowhite's own automobile to go to the American Oil Company's yard in Curtis Bay. These trucks were Henderson's usual mode of transportation to the American Oil Company yard. Henderson took one of Snowhite's trucks to Henderson's home numerous times for the night after Henderson had completed his deliveries. Snowhite knew of this practice and never objected to it.

Henderson used the trucks whenever he wished for his personal purposes, including going fishing after his deliveries were completed. It was common knowledge among Snowhite's drivers that Henderson was very much interested in fishing. Snowhite knew that Henderson had been using one of Snowhite's trucks to go fishing about twice a week from 9:00 a. m. when Henderson had completed his morning deliveries until 5 or 6 p. m., for a year prior to the accident. Henderson kept fishing equipment, including a rod and reel, in every truck. One of the fishing rods in the truck involved in the accident was owned by Snowhite who had loaned it to Henderson when Henderson used the truck to go fishing. Snowhite had expressly permitted Henderson to use a stake-body truck, owned by Snowhite for moving furniture and other personal property of Henderson's friends. Henderson expressly denied Snowhite's contention that on the day of the accident, Snowhite had told Henderson that after his morning deliveries 'that would be all for the day' and that the gasoline truck should then be taken back to the American Oil yard.

On the day of the accident, Henderson reported for work at about 7:00 a. m. at Snowhite's office on Pearl Street in Baltimore City. He received an order for a gasoline delivery to a customer at Pine and Saratoga Streets, and orders for some kerosene deliveries which were to be made from a different truck. He took Snowhite's gasoline truck, which he had parked on Pearl Street the previous evening (as he often did for convenience) to the American Oil Company yard in Curtis Bay to load it with gasoline. He finished loading the gasoline truck about 9:00 a. m. and completed his gasoline delivery at approximately 11:00 a. m. The gasoline customer was only about a half block from Snowhite's office on Pearl Street. Henderson then parked the gasoline truck on Pearl Street, three or four houses below the office, and put the delivery ticket through the door of the office. He did not feel like making the kerosene deliveries right then, so he went to a bar at Pearl and Saratoga Streets which had been his 'stop-off * * * for the last couple of years anyway.' He stated that it was there that Snowhite 'could always find me in case anything came up during the day if I didn't have any orders.'

After Henderson had drunk 'about, almost a pint of whiskey' he picked up a girl who was in the truck with him when the accident occurred. He took the truck with the girl in it to a place near the American Oil yard for some 'sporting'. The accident occurred when he was coming back and was on the way to Kratz's Garage on Calverton Road in Baltimore City to pick up a kerosene truck to make his kerosene deliveries. Henderson said he had 'intentions of doing more work' that day which was the reason for his driving back toward Kratz's Garage.

In 1959-about two years prior to the accident-Henderson began drinking heavily. He was convicted of reckless driving on February 17, 1959 and again on April 7, 1959, and still again on November 16, 1960. On October 25, 1961, he was convicted of failing to stop at a railroad crossing while driving a gasoline truck, thus making a total of four convictions for moving violations in approximately two and one-half years. Snowhite knew about these convictions, which were for violations while Henderson was driving Snowhite's trucks. Snowhite also knew about an accident in which Henderson was involved for which he was not convicted. Snowhite warned Henderson that if he had any more accidents Snowhite would not be able to get any more liability insurance on the trucks.

During the two-year period prior to the accident during which Henderson was drinking heavily, he spent a substantial time every day at the Pearl Street bar. This bar was on the same street as Snowhite's office, approximately one-half a block away. Henderson drank whiskey at this bar for approximately 45 minutes to one hour between 7 and 8 a. m. (exclusive of other times), six days a week, immediately prior to driving Snowhite's trucks. Snowhite knew that Henderson frequented the bar daily during this two-year period and that Henderson drank. Indeed, Snowhite would send over to the bar or go over to the bar himself and get Henderson when he wanted Henderson to drive one of his trucks. Henderson would then come out of the bar, and thereafter, with Snowhite's knowledge that he had been drinking, he would get into one of Snowhite's trucks and drive it. Snowhite admitted that he would go over to the bar occasionally to get Henderson when he wanted Henderson to drive....